A legal examination of remand proceedings in Nigeria

INTRODUCTION

The constitutionally guaranteed right to personal freedom is undeniably a fundamental right, acknowledged not only by domestic laws but also by international agreements. Nonetheless, there are legal circumstances where this right may be temporarily derogated, such as when an individual is charged or convicted of a criminal offence^[1].

In any of these circumstances, arrest and detention are not considered infringements, provided that the duration of detainment does not exceed the period specified in the constitution of the Federal Republic of Nigeria, which is one day in the event of an arrest or detention in a location within a forty-kilometre radius of a court of competent jurisdiction. In other instances, where such proximity to a court does not apply, the permissible period is two days, or longer duration as may be deemed reasonable by the court, depending on the specific circumstances^[2].

The aforementioned provision notwithstanding, numerous situations exist in which a detainee is held in custody and trial is yet to commence. To comply with the constitutional stipulation, an application is made to the magistrate’s court, seeking the detainee’s remand in custody until the formal arraignment takes place. The order given by the magistrate in response to this application is called a remand order^[3].

In the case of Lufadeju v Johnson^[4], the Nigerian Supreme Court provided a definition for “remand” as the act of sending an individual to prison or returning them to prison from a court of law for subsequent trial following additional investigations, frequently described as being “remanded in custody.” Additionally, it signifies the action of recommitting an accused person to custody following a preliminary examination.

For the purpose of this article, we shall examine remand proceedings, the legal framework that provides for same as well as the challenges within the Nigeria Criminal Justice system.

PROCESS AND PROCEDURE IN REMAND PROCEEDINGS

The legal framework that provides for remand proceedings in Nigeria is chiefly the Administration of Criminal Justice Act 2015. Although about 29 states have domesticated this act, this paper shall examine remand proceedings and procedures under the Administration of Criminal Justice Act with similar provisions under the domestic laws^[5].

Prior to the enactment of the Administration of Criminal Justice Act of 2015, remand procedures in Nigeria lacked clear definitions and contained significant gaps that were susceptible to manipulation by legal practitioners and law enforcement agencies. Consequently, an individual could be remanded under the order of a Magistrate without a return date^[6].

The remand proceeding as provided in the Administration of Criminal Justice Act of 2015 is designed to establish effective judicial oversight for detainees of law enforcement agencies. While it permits prosecutors to have sufficient time to prepare for arraignment, it also ensures adherence to the constitutional requirement of prompt arraignment of suspects before a competent court within a reasonable timeframe.

Section 293 of the Administration of Criminal Justice Act 2015 provides specifically as follows:

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(1) A suspect arrested for an offence which a magistrate court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a magistrate court for remand.

This Section is the legal basis for remand proceedings and orders. It should however be noted that the magistrate can grant remand orders in matters it ordinarily lacks jurisdiction, making a remand proceeding appear as an exception to the rule that mandates jurisdiction as a pre-condition for every matter instituted.

The Act further provides that an application for remand order is made ex parte and is to:

(a) be made in the prescribed “Report and Request for Remand Form” as contained in Form 8, in the First Schedule to this Act; and

(b) be verified on oath and contain reasons for the remand request^[7].

The grant of this order is however dependent on whether the court believes that probable cause has been established. The factors the court would consider to determine probable cause include:

(a) the nature and seriousness of the alleged offence;

(b) reasonable grounds to suspect that the suspect has been involved in the

commission of the alleged offence;

(c) reasonable grounds for believing that the suspect may abscond or

commit further offence where he is not committed to custody; and

(d) any other circumstance of the case that justifies the request for remand^[8].

This provision implies that where an application is brought ex parte in the prescribed form and upon consideration of the conditions, the court finds that there is probable cause, the application would be granted and the suspect would be remanded for a reasonable time.

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A careful examination of the Act reveals the legal standpoint of what connotes reasonable time for the remand of a suspect. The need for these comprehensive time constraints and procedural guidelines for remand orders is to thoroughly address the historical challenges associated with unnecessarily prolonged detention.

Section 296 of the Administration of Criminal Justice Act 2015 stipulates that when a remand order is granted, it has a maximum duration of 14 days, after which it automatically expires unless a written application is made to the court justifying the need for renewal based on ‘good cause.’

In the event of renewal, the extended remand period still cannot exceed 14 days, as in the initial order. In both scenarios, the case must be scheduled for a court appearance during the remand period. Consequently, the agency or officer requesting the remand order must appear in court to provide the court with updates on the continued detention of the suspect or to inform the court if the suspect has been formally charged.

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In the event that the suspect, who has been under remand for the initial two periods, remains neither released nor formally charged in court. The court is required to either grant bail to the suspect upon their application, or it can issue a hearing notice to the relevant authority responsible for the suspect’s custody or remand, in order to investigate the status of the case and to provide valid reasons why the remanded suspect should not be released without conditions^[9]. Following this, the court is obliged to adjourn the matter, ensuring that this adjournment does not exceed 14 days from the conclusion of the previous remand period as specified in the first two instances.

In situations where the relevant authority can demonstrate valid reasons for why the suspect hasn’t been charged or brought before a court with jurisdiction, the court has the discretion to prolong the suspect’s remand for a final period of no more than 14 days, with the aim of ensuring that the suspect is presented for trial in an appropriate court. Furthermore, the court must schedule the case for a hearing within that 14-day window, beginning from the issuance date of the hearing notice.

Conversely, if a compelling justification for the continued remand of the suspect isn’t presented, or if the suspect remains in remand custody even after the extended period has elapsed, the court has the authority, whether or not a formal application is made, to release the suspect from custody without delay^[10].

The Act decisively provides that no further application for remand shall be entertained by any court after the court has ordered that the suspect be released^[11].

CHALLENGES WITHIN THE NIGERIAN CRIMINAL JUSTICE SYSTEM

There are numerous challenges that plague the Nigerian criminal justice system. Our focus shall however remain on the challenges as it relates to remand proceedings.

Aside from the long-standing debate on the validity of remand proceedings vis a vis the unconstitutional contemporary called holding charge, one of the most prominent challenges within the Nigerian prison and detention system that relates to remand proceedings is the appalling condition of the cells where detainees are held and the harsh living conditions they are subjected to. This can be attributed to overcrowding, lack of access to basic amenities, amongst others.

Remand proceedings further deepen this problem as detainees are retained in these already crowded and poorly managed detention centres. Despite the presumption of innocence rule, they are detained for longer than the 24/48 hours rule and although legal, these detainees are subject to degrading treatment as opposed to the constitutionally guaranteed right of personal liberty and right to dignity of the human person^[12].

Another challenge is the quality of investigative work carried out. The rationale for remand proceedings is to prevent interruption of the investigation and facilitate interrogation. However, more often than not, this proceeding continues to be abused by shabby investigation or used as a tool of victimization, breaking the very foundation of the fundamental rights provided for by the Constitution.

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CONCLUSION

Remand proceedings have been highly instrumental to the administration of criminal justice in Nigeria and although it sports its peculiar challenges, it boasts of numerous perks that have aided the police in carrying out their duties judicially and judiciously. While it can be argued that it impedes the rights of detainees, it can be retorted that it is in furtherance of public policy and ticks the box of aligning with “the better good”.

1. Anyadiegwu, Mike. “REMAND PROCEEDINGS; A PRE-TRIAL DETENTION ORDER BY MAGISTRATES.” (2022). Premier Bar Journal 1.1 ↑
2. Section 35 of the Constitution of the Federal Republic of Nigeria (1999)as amended ↑
3. Ibrahim, Aliyu. “Decongestion of Nigerian prisons: An examination of the role of the Nigerian police in the application of the holding-charge procedure in relation to pre-trial detainees.” (2019). African Human Rights Law Journal 19, no. 2 page 779-792. ↑
4. (2007) 8 NWLR (Pt. 1037) 535 at 562 SC. ↑
5. Kanu, Ugochukwu Charles, Don Onuora Okanyi, and Leonard Ibekwe Ugwu. “Scrutinizing the Constitutionality of Remand Order Proceedings under the Administration of Criminal Justice Legislations in Nigeria: A Comparative Analysis.” (2022) Beijing L. Rev. 13 page1030. ↑
6. Ilo Babajide Olatoye, and Adekunbi Folashade Imosemi. “Prospect and Challenges of Criminal Procedures in Nigeria: A Review.” (2022) Unnes Law Journal: Jurnal Hukum Universitas Negeri Semarang 8, no. 2. ↑
7. Section 293(2) of the Administration of Criminal Justice Act 2015 ↑
8. Section 294(2) of the Administration of Criminal Justice Act 2015 ↑
9. Section 296(4) of the Administration of Criminal Justice Act 2015 ↑
10. Abdullahi, Ibrahim. “The Supreme Court of Nigeria Decision in Lufadeju vs Johnson (2007) 8 Nwlr (Pt 1037) P.535: Whither the Unconstitutionality of Holding Charges in Nigeria.” (2014) JL Pol’y & Globalization 2988. ↑
11. Section 296(7) of the Administration of Criminal Justice Act 2015 ↑
12. See geerally Section 34 and 35 of the 1999 Constitution of the Federal Republic of Nigeria as amended ↑